The capture of Khatallah: How things went down in Libya

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When Ahmed Abu Khatallah, accused of leading the attack on the U.S. mission in Benghazi was seized by U.S. special forces in Libya after midnight Monday, it raised a number of questions. Not the least being why it took 21 months to capture him.

The answer is more complex than it might first appear. There were essentially three major issues in play: the FBI and the Justice Department were determined to build a clean legal case against Khatallah that would stand up in public court; diplomatic and military factors complicated the timetable, and more than a half-dozen government agencies — some with their own specific concerns — had to coordinate in carrying out the secret mission.

These agencies included the Pentagon’s Joint Special Operations Command, which runs the special forces, including the Navy’s SEALs and the Army Delta Force; the FBI, which gathered the legal evidence against Khatallah; the State Department, which had to prepare for the international legal issues; the Navy, which is bringing Khatallah back to the United States; the Justice Department, which will prosecute the captured suspect; the CIA, which provided intelligence support; the White House, where the president had to approve the operation, and other units of the government that target terrorists. All had “equities” in this covert action — bureaucratic-speak for a piece of the action.

The U.S. ambassador to Libya, Christopher Stevens, was killed in the September 11, 2012 attack, as were Sean Smith, a State Department IT specialist, and Glen Doherty and Tyrone Woods, CIA contractors who had both served as Navy SEALs. The episode became a political firestorm, with Republicans accusing the Obama administration of misleading the public on the cause of the attack.

It was not until last July 15, 2013, that the Justice Department had gathered enough evidence to file a secret criminal complaint in U.S. District Court in Washington, signed by Chief Judge Royce C. Lamberth. Khatallah was charged with three counts — murder of a person in an attack on a federal facility, providing material support to terrorists and using a firearm during a crime of violence.

“Until the underlying charges were filed in court,” one intelligence official, who asked to remain anonymous, said, “you could do nothing.”

The U.S. government agencies may have been forced to wait as the investigation moved forward, under the radar, but Khatallah could continue living openly. Caitlin Hayden, a spokesperson for the National Security Council, in an email to Reuters, said the fact that reporters were able to interview Khatallah “does not establish that there are appropriate conditions for a U.S. capture operation. Osama bin Laden was interviewed multiple times by Western journalists even as he remained among the most wanted men the world.”

Hayden added: “There are diplomatic, intelligence, law enforcement and military considerations that factor into the timing of such a complex operation as the one responsible for the capture of Khatallah. Many of these considerations just don’t apply to a news interview.”

What her careful language masked was the intricate inter-agency coordination that led up to the FBI and the Justice Department filing the legal complaint and the operation moving into the planning stage.

Looking back, it is now easy to predict that Khatallah’s capture might have been delayed, or even derailed, by diplomatic fallout from a similar capture of a Libyan militant last October. In Tripoli, three months after Khatallah was secretly charged, Navy SEALs raided the seaside villa of Nazih Abdul-Hamed al-Ruqai, better known by his alias, Abu Anas al-Libi, who had been indicted in 2000 as a suspect in the 1998 bombings of the U.S. embassies in Kenya and Tanzania. He had been the subject of a 15-year manhunt.

The Libyan government issued loud protests. Tripoli insisted that the Americans had invaded the country to kidnap one of its citizens. The State Department was unhappy the mission had created such public diplomatic tension, and so was the FBI, which wanted to move on the capture of Khatallah.

Once the seizure of al-Libi became a public incident, it deprived the U.S. military of the element of surprise in any future action involving Khatallah. The Pentagon then decided to wait until a better opportunity presented itself to go after Khatallah, who had grown far more careful about his movements in Benghazi after al-Libi’s capture.

Once the U.S. government finally did act, on Sunday night, a Libyan foreign ministry spokesman denounced Khatallah’s kidnapping as a “regrettable infringement on Libya’s sovereignty.” That led Samantha Power, the U.S. ambassador to the United Nations, to say in a letter to the U.N. Security Council that Khatallah was a “key figure” in the Benghazi attacks and “continued to plan further armed attacks against U.S. persons.” The capture of Khatallah, Power argued, was done in accord with the United States’ “inherent right of self defense.”

U.S. officials said the Monday morning raid was carried out by Navy SEALs, who reportedly arrived on the Libyan coast by fast boat, grabbed Khatallah near his seaside home and got out. The Army’s Delta Force commandos are said to have been waiting on land, in case they were needed. Both the Pentagon and the SEALs declined to comment or provide any details of the raid.

Although it was reported that “two or three” FBI agents had joined the special forces in capturing Khatallah, according to intelligence sources there was only one FBI agent on the capture team — and he was there essentially to make sure that the legal evidence, and chain of custody of that evidence, was preserved.

Inevitably, questions have arisen about the treatment of Khatallah. He was whisked aboard the USS New York, a naval transport vessel built with seven and a half tons of steel from the World Trade Center in her bow. The suspect will likely be interrogated subject to a 2009 order by President Barack Obama, which requires questioners to comply with the Geneva Conventions and forbids torture.

According to U.S. intelligence officials, this will be an interrogation for intelligence purposes — to try to determine any future plots that Khatallah might be planning or may know about. Probably anything he says in that phase of the questioning could not be used against him in court.

Then, if past precedent is any guide, a “clean team” of criminal investigators would be brought in and at that point he would be given a Miranda warning, including the right to remain silent and to have an attorney. He would then be brought to Washington, formally indicted by a grand jury, and would stand trial.

His probable conviction would not, of course, end the political controversy over Benghazi. That roiling public debate continues, revived by the fact that Hillary Clinton, criticized by opponents for her handling of the issue while she was secretary of state, is now considered the front runner for the Democratic nomination for president in 2016.

*This article was changed to correct timing of Khatallah’s seizure, it occurred after midnight Monday.

PHOTO (TOP): Navy SEAL in an undated photo. Courtesy of the DEFENSE DEPARTMENT

PHOTO (INSERT 1): President Barack Obama listens to a question during a visit to Pittsburgh, June 17, 2014. REUTERS/Kevin Lamarque

PHOTO (INSERT 2): A protester reacts as the U.S. Consulate in Benghazi is seen in flames during a protest by an armed group said to have been protesting a film being produced in the United States September 11, 2012. REUTERS/Esam Al-Fetori

PHOTO (INSERT 4): A member of the U.S. military’s Special Forces smokes a cigar while holding a weapon as his unit leaves for a mission at Forward Operating Base Joyce in Kunar province, eastern Afghanistan, March 13, 2012. REUTERS/Erik De Castro

PHOTO (INSERT 5): Secretary of State Hillary Clinton responds forcefully to intense questioning on the September attacks on U.S. diplomatic sites in Benghazi, Libya, during a Senate Foreign Relations Committee hearing on Capitol Hill in Washington, January 23, 2013. REUTERS/Jason Reed

And that’s why trying to treat guys like this, like some sort of common criminal… is a joke and should never be done. What, are they going to go through this every time some nut blows something up or kills somebody? All this for one guy. All the other people involved, will never be found or punished…. and instead they’ll just have more motivation for doing something again. So the message is… Don’t worry… Go ahead and do this stuff as much as you want, because we probably won’t come after you, and if we do… it will take years, and we’ll only get one token guy.

Unfortunately, the author got a lot wrong in this article. It is worth reading for the legal aspects, but not for what actually happened “on the ground” in this operation. That he doesn’t even know that JSOC does not control the SEALs is a basic factual error that could have been corrected with the simplest of Google searches. I would not take any of what he wrote, in that regard, to heart. This article is poorly researched and not worth investing your time in digesting as fact.

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David Wise writes frequently about intelligence and espionage. His most recent book is “Tiger Trap: America's Secret Spy War with China.” His other books include “Spy: The Inside Story of How the FBI's Robert Hanssen Betrayed America.”